Grebe v. First State Bank of Bishop , 136 Tex. 226 ( 1941 )

As I interpret the opinion of the majority, it holds:

(a) That where a husband during coverture deposits funds in a bank in this State in an ordinary checking account, the surviving wife, after the husband's death, has no legal right or power to collect from such bank more than her community interest (one-half) of such deposit, except to pay community debts.

(b) That the same rule applies to the surviving husband after the death of the wife.

(c) That neither the surviving husband nor the surviving wife has the right to collect debts owing to the community estate, except to pay community obligations owing by the community estate. (I will refer to this matter later.)

(d) That the surviving husband has some right or power in regard to the possession of the community assets and the collection of debts owing to the community estate that are particular to him.

I am of the opinion that the rights and powers of the surviving husband and of the surviving wife are the same in regard to the right of possession of the community estate, and the right to collect debts owing to the same, except the surviving wife loses her rights during any subsequent coverture. Article 3678, R.C.S. 1925. I believe that this question has been fully settled by our decisions, and by the above statute.

I think it is settled by the decisions of this State that the survivor in community, whether husband or wife, has the power, in the absence of any legal proceedings regarding the community estate, to reduce such estate to possession and to sue for, demand, and collect the claims, choses in action, and debts due and owing to such estate, — all regardless of debts due by the estate. To my mind, no rule of law has heretofore been better settled than this. Gulf, W.T. P. Ry. Co. v. Goldman, 87 Tex. 567,29 S.W. 1062; San Antonio A.P. Ry. Co. v. Evans,198 S.W. 674; Western Union Telegraph Co. v. Kerr (Civ. App.),23 S.W. 564; Evans v. Evans (Civ. App.), 249 S.W. 1097. I also here refer to the authorities cited by the Court of Civil Appeals to sustain its ruling, which is to the same effect that I am contending for here.

I think it is settled as the law of this State, — in fact, I think it is the law generally in this Country — that when a person deposits money in a bank in an ordinary checking account, merely the relation of debtor and creditor is created. It is elementary that the title to the money deposited passes to the bank. The bank makes no contract, express or implied, to return the money deposited. In law, the bank merely obligates itself to repay the amount deposited on the written check or order of the depositor. In the very nature of the transaction only a debt due on demand is created. Stone Fort National Bank v. Forbess, 126 Texas. 568, 91 S.W.2d 674; Duncan v. Magette, 25 Tex. 246, 248; Baker v. Kenedy, 53 Tex. 200; Hewett v. First National Bank, 113 Tex. 100, 252 S.W. 161. These authorities are but a few of the many that sustain the above rule. I think there are no authorities to the contrary, — in fact, I do not understand the majority opinion even questions the above rule.

If an ordinary checking account in a bank in this State is merely a debt of the bank to the depositor, the right or power of the survivor in community to collect the same must turn on the right or power of such survivor to collect a debt or obligation due and owing the community estate. This certainly ought to be the rule, because there could be no good reason given for placing bank debts in a different class from debts of any other corporation, or, for that matter, any other person, natural or artificial.

The opinion of the majority states: "We recognize that there is an analogy between the relation of husband and wife with reference to the community property, and that of the members of a commercial partnership towards firm assets, and that by reason of such analogy the survivor of a community, and particularly the surviving husband, on account of the fact that he is personally liable for the community debts, is entitled to possession of the community assets, including the right to collect debts owing thereto, in order that he may pay its outstanding obligations, and thereby protect himself against individual liability." It is the portion of this opinion just quoted that I construe as holding that in some way the surviving husband has some particular powers that the surviving wife does not have. As I understand it, there was a time in this State when the surviving husband possessed powers that the surviving wife did not possess. This is not the rule now, unless the majority opinion makes it such. Also the above is the portion of the opinion that I construe as holding that the power to collect debts depends on the fact that the community owes debts.

I regard the opinion of the majority of very far-reaching consequences. From now on no bank can pay to a survivor in community any part of a community bank account without running the risk of having to pay again to the heirs. This must be true, because in the very nature of the transaction the bank will assume the burden of proving that it was necessary to pay such account to the survivor in order for him to pay community debts. Under the rule announced by the majority no debtor of the community can afford to pay his debt to the survivor for the same reason. Most bank accounts are small, and the rule announced by the majority opinion will either result in freezing them in the banks or dissipating them in probate proceedings. The same is true as to debts due the community.

As above indicated, I dissent from the majority opinion.

Opinion delivered March 12, 1941.